The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Monday, June 03, 2013

Fun writing today in the 11th Circuit

When asked why he robbed banks, legend has it that famed American bank robber Willie Sutton replied, “Because that’s where the money is.” Bryan Burrough, Books: The Robber’s Last Ride, Wall St. J., Sept. 29, 2012, at C6. Lonnie Whatley may have taken this advice to heart when he robbed four banks in the greater Atlanta area during 2003 to 2006 and attempted to rob another in 2007. In this appeal of his convictions for the robberies, Whatley asks us to resolve fourissues: (1) whether the admission of 14 in-court identifications of Whatley by bank employees violated his right to due process; (2) whether the district court abused its discretion when it admitted evidence of Whatley’s conviction for the attempted bank robbery as evidence of a modus operandi; (3) whether the district court abused its discretion when it declined to grant Whatley a new trial after the parties discovered that the jurors had considered extrinsic evidence during their deliberations; and (4) whether the district court erred when it applied a four-level sentencing enhancement for abduction of the bank employees because Whatley ordered the bank employees to move around to different areas within the banks.

We conclude that, based on the recent decision of the Supreme Court in Perry v. New Hampshire, __ U.S. __, 132 S. Ct. 716 (2012), which requires no preliminary examination for an identification not arranged by law enforcement officers, the admission of the in-court identifications of Whatley did not violate his right to due process. We also conclude that the district court did not abuse its discretion when it admitted evidence of Whatley’s conviction for the attempted bank robbery and that the district court did not abuse its discretion when it denied Whatley a new trial. But we also conclude that the district court erred when it applied the enhancement for abduction. We affirm Whatley’s convictions, vacate his sentence, and remand for resentencing with instructions to apply the two-level enhancement for physical restraint of the employees instead of the four-level enhancement for abduction.

Judge Jordan concurs in part and dissents in part, and has some great quotes and references in his opinion:

Procrastination is not generally seen as a good character trait, but in constitutional adjudication it can often be a virtue. In my opinion, we need not and should not decide the effect of Perry here because Mr. Whatley cannot prevail on his due process claim even under our pre-Perry precedent.***Nor does the evidence on Count 1 allow the government to discharge its burden. It is true, as the majority writes, that three bank employees identified Mr. Whatley as the perpetrator of the June 2003 robbery at trial. But these in-court identifications cannot be considered in a vacuum. To begin with, the identifications were made in 2010, seven years after the bank robbery in question, and it does not take a Nobel laureate in medicine to understand that “[t]ime’s the thief of memory.” STEPHEN KING, THE GUNSLINGER 161 (Signet rev. & exp. ed. 2003).

The White House Rose Garden is rarely a scene of insurrection. But if reports are to be believed, this morning at 10:30 the president will use the setting for phase one of a strategy that could end with Senate Democrats exercising the "nuclear option" to reset rules around the use of the filibuster. Simply by saying three names.

After Obama nominates three people at once, Senate Majority Leader Harry Reid can bring them before the whole Senate simultaneously. The hope is that, by doing so, the Republicans would be less able to justify filibusters for all three, given that it's meant to be a tool employed in rare circumstances. If the Republicans do filibuster them all, the Senate could decide to revamp established rules — which isn't subject to filibuster — making it so that certain nominees need only a majority of votes to be approved. This is known, melodramatically, as the "nuclear option," given that it upends the protocol to which the Senate ostensibly adheres.

The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.